UNITED STATES OF AMERICA v. EFRAIN ANTONIO CAMPO FLORES and FRANQUI FRANCISCO FLORES DE FREITAS
Nos. 17-4039(L), 17-4141(Con)
United States Court of Appeals, Second Circuit
December 20, 2019
August Term, 2018
Argued: January 24, 2019
Before: KEARSE, JACOBS, and SACK, Circuit Judges.
Appeals from judgments of the United States District Court for the
Affirmed.
RANDALL W. JACKSON, New York, New York (John T. Zach, Boies Schiller Flexner, New York, New York, on the brief), for Defendant-Appellant Efrain Antonio Campo Flores.
MICHAEL A. LEVY, New York, New York (David M. Rody, Michael D. Mann, Elizabeth A. Espinosa, Melanie Berdecia, Sidley Austin, New York, New York, on the brief), for Defendant-Appellant Franqui Francisco Flores de Freitas.
KEARSE, Circuit Judge:
Defendants Efrain Antonio Campo Flores (“Campo“) and Franqui Francisco Flores de Freitas (“Flores“) appeal from judgments entered in the United States District Court for the Southern District of New York following a jury trial before Paul A. Crotty, Judge, convicting them on one count of conspiracy to import five or more kilograms of cocaine into the United States, see
I. BACKGROUND
According to the evidence at the nine-day trial in November 2016, taken in the light most favorable to the government, the events at issue in this prosecution--
A. The Trial Evidence
At trial, DEA Special Agent Daniel Mahoney gave general testimony as an expert on “drug trafficking routes, particularly the routes used to move cocaine from South and Latin America, the ways, manor [sic], means and method of trafficking along those routes and the prices of cocaine along those routes.” (Trial Transcript (“Tr.“) at 542-43.) He testified that approximately 90% of the cocaine sent from South America into Central America is destined for the United States, and that it is generally known among traffickers in the region that cocaine sent out of South America and into Central America is headed to the United States.
1. The DEA Learns of Campo and Flores, and Sends in the Spies
Gonzalez, who coordinated much of the operation that led to defendants’ arrests, testified that the DEA‘s investigation of Campo and Flores began on October 3, 2015, when Gonzalez was contacted by Carlos Amilcar Leva Cabrera, a Honduras-based drug trafficker known as El Sentado (or “Sentado“). Sentado was being prosecuted on federal narcotics charges in the Southern District of New York and had begun providing assistance to the DEA in an effort to obtain a cooperation agreement.
Based on what Sentado told Gonzalez, Gonzalez instructed him to record a meeting he was scheduled to have that day in Honduras with Campo and Flores--using his cellphone, as the DEA would be unable to get unobtrusive recording equipment to him in time. Gonzalez also instructed Sentado to try to contact another DEA cooperating person who was in Honduras, in order to provide a second witness to the meeting with Campo and Flores; but Sentado was not able to get in touch with that person.
Sentado attended the meeting but did not record it. He later sent the DEA a photograph of himself with, inter alios, Campo, Flores, and a Honduras-based Colombian drug trafficker, Cesar Orlando Daza Cardona (“Daza“), also known as El Flaco (“Flaco” (or “Flacco“)), who had never provided assistance to the DEA. Flaco was the person who had introduced Campo and Flores to Sentado in their quest for cocaine distributors. (See Tr. 162-63.)
After hearing from Sentado, Gonzalez enlisted Santos-Pena, a former member of the Sinaloa drug cartel and long-time DEA confidential source, to meet with Campo and Flores in Venezuela posing as a Mexican drug trafficking associate of Sentado. Santos-Pena went to Venezuela in late October, accompanied by his son
2. Conversations Among Campo, Flores, and the DEA Confidential Sources
a. Defendants’ October 23, 26, and 27 Meetings With Santos-Pena
Santos-Pena and Santos-Hernandez met with Campo and Flores on October 23, 26, and 27 and made recordings of their three business meetings, which were given to the DEA. At trial, the government played portions of audio recordings and of video recordings with synched English subtitles, and introduced translations and transcriptions (with “...” denoting a pause, and the court explaining that “UI stand[s] for unintelligible” (Tr. 614-15)). The recordings and Santos-Pena‘s testimony about these meetings included the following.
In the October 23 meeting, Campo said that defendants had gone to Honduras to meet with Sentado some weeks earlier and had wanted “‘to do something as soon as possible‘” (Tr. 612 (quoting (Government Exhibit (“GX“) 203-T
Campo explained defendants’ need for speed, stating that “my mom is running for the election and I need . . . twenty million dollars,” and “we need it by December.” (GX 203-T at 11.) Santos-Pena responded that he had available “money right now to put up and hand to you.” (Id.) Campo said that because of Sentado‘s failure to attend “meeting[s] over there, I started to look around elsewhere” (GX 203-T at 10 (emphasis added)), which Santos-Pena testified he understood to mean that Campo “was doing other drug deals with other people,” i.e., other than Sentado and Santos-Pena (Tr. 615).
At that October 23 meeting, part of the discussion concerned how the cocaine would be transported. Santos-Pena explained that portion of the recording as follows:
Q. Sir, do you see where you say, “Do you want [me to send] a car for you or will you send a car?”
A. Yes, sir.
Q. What do you mean by “a car” there?
A. An airplane.
Q. To do what?
A. To send the drugs from Venezuela to Honduras.
Q. And do you see . . . where defendant Campo says, “I told him I may have the possibility of providing the car?”
A. Yes, sir.
Q. Who do you understand defendant Campo to be referring to when he uses the word “him” here?
A. Mr. Sentado.
Q. Do you see later in that same row where defendant Campo said, “I had some cars and I was working with some people over there from where you guys are from?”
A. Yes, sir.
Q. What did you understand defendant Campo to mean when he said he had been working with some people over there from where you guys are from?
A. He was referring to some Mexicans.
Q. And what kind of work did you understand did he say he was doing with them?
A. Drug trafficking.
(Tr. 619-20 (quoting GX 203-T at 25).) A defense objection to the last question and answer was overruled.
As to the proposed airplane, Campo said ““it departs from here as if someone from our family were on the plane.” (Tr. 626-27 (quoting GX 201-T at 39).) Santos-Pena interpreted this as an assurance that the drug shipment would be one “hundred percent safe,” as it would depart on an airplane with an approved flight plan and official permission to fly. (Tr. 627.)
At that October 23 meeting, Campo also said he would ask his supplier for a sample of the cocaine so that Santos-Pena could ““see what it‘s like.” (Id. at 632 (quoting GX 202-T at 10).)
At the meeting on October 26, the negotiations covered, inter alia, the quantity of cocaine for defendants’ first planned shipment, the possibility that defendants would buy an airplane for future trafficking, the price to be charged by Sentado for receiving and unloading the cocaine in Honduras, and how soon defendants would be paid. As to quantity, Santos-Pena stated: “[T]he thousand kilos,
On the tape Santos-Pena was heard to say “I‘ll keep putting money into it until it gets to Mexico, and I keep putting money into it to get it over there, and I keep putting money into it to get it in to the Americans, to cross it over, and I‘m taking all the risks, but this is the deal, when I do sell, I sell at a high price” (GX 206-T at 22); he explained what certain phrases meant:
Q. What did you mean when you said you keep putting money into it to get it into the Americans?
A. That I keep investing money to each kilo of cocaine in order to cover more land and get to the U.S.
Q. And what were some of the expenses that you would need--you were referring to here?
A. Transportation and safety.
Q. And . . . right after the word “Americans” do you see where it says “to cross it over“?
A. Yes, sir.
Q. What do you mean by, “cross it over“?
A. To cross the U.S. border.
(Tr. 662-63 (quoting GX 206-T at 22).)
At the meeting on October 27, Santos-Pena was allowed to “test” a sample of cocaine brought to the meeting by defendants “in order to see the quality.” (Tr. 680-81.) The government played portions of the video recording for the jury; and over defendants’ standing objection (see Part II.A.2. below), Santos-Pena narrated his inspection of the “kilo of cocaine” brought to the meeting by defendants:
Q. Sir, what were you doing with the kilo of cocaine there?
A. I was checking it out to evaluate the quality and to make sure that it was cocaine.
Q. How were you doing that?
A. I took a little bit with my hands. I smelled it to see if it smelled of cocaine. I looked at the color to see what kind of color it had. I rubbed it a little on my hand so that it would release the oils on my hand and see how much oil it would release.
. . . .
Q. Where did you learn to do that test?
A. In Mexico when I worked for the Sinaloa cartel.
. . . .
Q. And based on that what conclusion did you come to?
A. That it was cocaine and it was good quality.
(Tr. 692-93.)
The video also showed hands, identified by Santos-Pena as those of Campo, “putting on latex gloves” before handling the sample, being careful “not to leave his fingerprints on the kilo of cocaine” (Tr. 688-89), because “‘one day it arrives on the other side‘‘” (Tr. 691 (quoting GX 210-T at 23)). Santos-Pena testified that they were discussing the scenario that “[t]hat kilo of cocaine that we were opening could go over to the United States and that they might be full of our fingerprints, mine and Mr. Campo‘s, and that . . . we could be arrested because of that kilo by an agency such as the DEA.” (Tr. 691.)
Santos-Pena testified that after his inspection, the kilogram of cocaine was then resealed, with his help, and secured by Campo.
b. Campo‘s Ensuing Communications With Santos-Pena
After Santos-Pena left Venezuela, he had further communications with Campo via text messages. On October 30, after receiving a text from Campo saying
Q. Sir, do you see where Defendant Campo said: Well, as I was telling you, we have the chairs and the tables here already packed for 800 people. The ladder is all set and you guys are ready to roll there.
A. Yes, sir.
Q. What do you understand the reference to 800 to mean there?
A. 800 kilos of cocaine.
(Tr. 710 (discussing GX 306-T at 13).)
c. Flores‘s November 6 Meeting With Gomez
In early November, Gonzalez had DEA confidential source Gomez travel
d. Defendants’ November 10 Meeting With Santos-Pena
At the direction of Gonzalez, Santos-Pena arranged to meet Campo and Flores in Port-au-Prince, Haiti on November 10--supposedly to hand them their up-front $11 million, but actually to set up their arrests. On November 10, Santos-Pena met defendants at the airport in Haiti and drove with them to a restaurant at a hotel.
Santos-Pena testified that when he received a signal from Gonzalez that the arrests were about to be made, he excused himself, telling defendants he was “going to go up to one of the rooms to come down with the $11 million.” (Tr. 718.) Campo and Flores were then arrested by Haitian authorities coordinating with DEA agents. Later that day, after a formal DEA request to Haiti for defendants’ expulsion, custody of Campo and Flores was transferred to Gonzalez and the DEA. Campo and Flores were then flown to Westchester County in New York.
3. Defendants’ Postarrest In-Flight Statements to Gonzalez
Gonzalez testified that Campo and Flores, after they had been provided with advice-of-rights forms in Spanish and had acknowledged understanding their rights, made various statements to him during the flight to New York. The interviews had not been recorded electronically. In addition to Gonzalez‘s testimony as to defendants’ statements, the government introduced into evidence Gonzalez‘s notes and reports of those statements, over defendants’ objections (see Part II.A.1. below). Gonzalez described the interviews, conducted with each defendant separately, as follows.
[Campo] asked me what if someone went down the path to commit a crime but then repented before committing the crime.
Q. What did you understand Campo to mean when you [sic] asked that question?
MR. JACKSON [Campo‘s attorney]: Objection.
THE COURT: Overruled.
THE WITNESS: I understood him to be referring to the specific cocaine transaction that he had been arrested to [sic] prior to delivering cocaine.
. . . .
Q. How did you respond to the question?
A. I told Mr. Campo that . . . there were recordings of the meetings; that he had traveled to Honduras, he had connected to Venezuela, and he traveled to Haiti.
Gonzalez, when asked what, if anything, he had said to Campo about the picture, testified as follows:
A. I asked him who was the person in the picture.
Q. How did Campo react when you asked him that question?
A. He hung his head and he said it is me.
Q. Did you ask Campo anything else about the photo . . . ?
A. Yes, I did.
Q. What else did you ask him?
A. I asked him what he was holding in the picture.
Q. How did Campo respond?
A. He said you know what that is.
Q. What did you understand Campo to mean when you said that?
MR. JACKSON: Objection.
THE COURT: Overruled.
. . . .
A. I understood him to be referring to cocaine.
(Tr. 137.)
Gonzalez asked Campo where he had obtained the cocaine. Campo responded that an individual called “El Gocho” had provided him with the package in the photograph. Campo said he had been introduced to El Gocho by a man known as “Hamudi.” Campo said that he did not know the actual names of either man but he knew that Hamudi had recently been killed.
Campo said that it was El Gocho, with whom he had met about five times, who was to have provided the 800 kilograms of cocaine for defendants’ first planned shipment to Sentado, and that El Gocho said the cocaine was “coming from the FARC“--a reference to the Fuerzas Armadas Revolucionarias de Colombia, “a Colombian paramilitary organization . . . known to be one of the largest producers of cocaine in the world” (id. at 149). When Gonzalez asked Campo how he was planning to ship drugs out of Venezuela, Campo stated “he didn‘t need anybody‘s help to do it, that he could do it because of who he was and the access that he had at the airport.”
Q. How did Campo initially respond to that question?
A. Campo initially responded that he did not know the drugs were going to the United States and that those words never came out of his mouth.
Q. Did you reply to that?
A. Yes, I did.
Q. What did you say?
A. I reminded him that there are recordings of his meetings and that he didn‘t necessarily have to say it himself but he knew that the Mexican individual had said that.
Q. How did Campo respond after you told him that?
A. He said, yes, but . . . I didn‘t emphasize it.
Q. Now, a moment ago you referred to the Mexican.
A. Yes.
Q. That‘s somebody that Campo referenced during the interview?
A. Yes, sir.
Q. Who did you understand him to be talking about when he said that?
A. He was talking about the confidential source, Mr. Santos Pena.
(Id. at 152-53 (emphases added).)
After this interview ended, Gonzalez took Campo to the back of the plane and brought Flores to the front. In the course of the ensuing interview, Gonzalez asked Flores how he had gotten in contact with the people in Honduras, and he said that Hamudi introduced him to a man by the name of El Flacco in Honduras.
Q. Did Flores provide any further identifying information for the man he referred to as El Flacco?
A. Yes.
Q. What else did he say?
A. He said he was Colombian.
Q. Did Flores say anything else about Flacco‘s role?
A. Yes.
Q. What?
A. He stated that Flacco introduced him to El Sentado and that El Sentado introduced him to the Mexican.
Flores stated he had gotten involved in the deal simply to make money; that “the Mexican” would pay $12,000 per kilogram of cocaine; and that, on the planned 800-kilogram shipment, Flores expected to earn $560,000 for himself. Gonzalez testified:
Q. And when Flores referred to the Mexican, who did you understand him to be referring to?
A. To our informant, Mr. Santos Pena.
Q. Did you ask Flores about the intended destination for the cocaine?
A. Yes, I did.
Q. What did you ask him?
A. I asked Flores if he knew where the cocaine was going.
Q. How did Flores respond?
A. Mr. Flores stated that the Mexican had told him the cocaine was going to Mexico and then to the United States, and several cities within the United States.
(Id. at 161 (emphases added).)
Gonzalez also testified that each defendant stated that he was involved in the cocaine enterprise for personal gain. Campo said that friends had warned him
4. Other Evidence
Among the other evidence presented by the government at trial were numerous electronic messages between Campo and Flores or between one of them and other persons, collected from the cellphones seized from defendants incident to their arrests. These included hundreds of messages in August and September of 2015, i.e., prior to any involvement by the DEA. (See Part II.B.4. below.)
As to Santos-Pena, the government had brought out, during its direct examinations of Gonzalez and Santos-Pena himself, that Santos-Pena was no longer a DEA informant, having been prosecuted in 2016 for engaging in drug trafficking while he was a DEA informant and for lying to the government. As discussed in Part II.B.1. below, defendants in cross-examination of Santos-Pena elicited that he had also continued his illegal activities by communicating with drug trafficking contacts while he was incarcerated and by lying about it when testifying in court. In light of these revelations, the government on Santos-Pena‘s redirect examination, in the presence of the jury, terminated his cooperation agreement.
Neither defendant testified at trial. Their primary defense was to argue that they lacked knowledge that the drugs at issue were destined for the United States; that the only mentions of the United States came from government informants; and that defendants were the victims of United States Government entrapment. (See Parts II.B.2.-II.B.4. below.)
B. The Jury Instructions and the Verdict
In instructing the jury, the district court, inter alia, set out the basic legal elements of the charged conspiracy, explaining that the government was required to establish beyond a reasonable doubt that there existed an agreement to import a controlled substance into the United States, or to distribute a controlled substance “intending and knowing that the controlled substance would be imported into the United States,” and that defendants knowingly and intentionally associated with and joined in that charged conspiracy (Tr. 1492). Over defendants’ objections, the court also instructed that the element of knowledge that the cocaine in question was to be imported into the United States would be satisfied if the jury found that defendants
The jury, after deliberating for less than a full day, found Campo and Flores guilty.
Defendants moved for judgments of acquittal or, alternatively, for a new trial. The court denied those motions in an Opinion and Order dated March 24, 2017, see United States v. Flores, S5 15 Cr. 765, 2017 WL 1133430 (S.D.N.Y. Mar. 24, 2017) (“Posttrial Order“). Pursuant to the 2016 version of the Guidelines, the district court sentenced each defendant principally to serve a 216-month term of imprisonment and to pay a $50,000 fine. (See Part II.C. below.)
These appeals followed.
II. DISCUSSION
On appeal, defendants--each adopting the arguments made in the other‘s brief--contend principally (1) that the district court erred in several evidentiary rulings; (2) that the evidence was insufficient to show (a) that they either knew the drugs in question were to be imported into the United States or deliberately avoided
A. Evidentiary Challenges
Defendants’ principal evidentiary challenges are that the district court erred in allowing Gonzalez‘s notes and reports as to defendants’ postarrest statements to be admitted during his direct examination, in allowing Santos-Pena to opine that the sample substance proffered by Campo was cocaine, and in allowing Gonzalez and Santos-Pena to testify as to how they had interpreted certain of defendants’ statements. We review such rulings under an abuse-of-discretion standard. See, e.g., Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997); United States v. Caracappa, 614 F.3d 30, 39 (2d Cir.), cert. denied, 562 U.S. 1075 (2010); United States v. Kaplan, 490 F.3d 110, 117-18 (2d Cir. 2007) (“Kaplan“). A district court abuses its discretion when “its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or if its decision cannot be located within the range of permissible decisions.” United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013) (“Cuti“), cert. denied,
An evidentiary ruling that is erroneous warrants a new trial only if it affects a party‘s substantial rights. See
1. Gonzalez‘s Interview Notes and Reports
Defendants’ principal evidentiary challenge is to the admission, during Gonzalez‘s direct examination, of his written notes and reports as prior consistent statements. They argue both (1) that those documents were not proper rebuttal because defendants did not mount an “express challenge” to Gonzalez‘s memory
Preliminarily, we reject defendants’ characterization of the notes and reports as hearsay. The Federal Rules of Evidence provide, in pertinent part, that “[a] statement . . . is not hearsay [if] . . . [t]he declarant testifies and is subject to cross-examination about a prior statement,” and the statement
(B) is consistent with the declarant‘s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant‘s credibility as a witness when attacked on another ground . . . .
[t]he intent of the amendment [adding subpart (B)(ii)] is to extend substantive effect to consistent statements that rebut other attacks on a witness--such as the charges of inconsistency or faulty memory.
The district court ruled that Gonzalez‘s notes and reports were admissible under Rule 801(d)(1)(B) in light of defendants’ opening arguments to the jury. In those opening statements, defendants launched an attack on the government‘s case based principally on the fact that their in-flight interviews were not recorded, and they pointed out, inter alia, that the interviews had been lengthy
In light of these statements, the government promptly moved under
Finally, as to timing, we reject defendants’ contention, as stated to the district court in their motion seeking reconsideration of that ruling, that
In sum, we find no abuse of discretion in the trial court‘s ruling as to the propriety or the timing of the admission of Gonzalez‘s notes and reports as prior consistent statements.
2. Admission of Santos-Pena‘s Testimony Identifying Cocaine
Defendants also contend that the district court erred in allowing Santos-Pena to testify that the substance that Campo brought as a sample to the Venezuela meeting on October 27 was cocaine. The court allowed Santos-Pena to so testify as a lay witness. Defendants contend that he so testified as an expert and that the court erred in not holding a Daubert hearing, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), as to the validity of his testing process. We disagree.
The Federal Rules of Evidence authorize the court to permit a witness to testify to admissible evidence in the form of an opinion, either pursuant to
[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness‘s perception;
(b) helpful to clearly understanding the witness‘s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Part (c) of
With respect to the type of evidence needed for the identification of chemical substances,
courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established. . . . Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson‘s personal knowledge.
Fed. R. Evid. 701 Advisory Committee Note (2000) (emphases added). Thus,
neither actual drug exhibits nor reports of chemical analysis are required to support a conviction for possession of a controlled substance. . . . As we noted in Bryce, “[l]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction.”
United States v. Gaskin, 364 F.3d 438, 460 (2d Cir. 2004) (quoting United States v. Bryce, 208 F.3d 346, 353 (2d Cir. 1999) (other internal quotation marks omitted)), cert. denied, 544 U.S. 990 (2005); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 n.14 (2009)
As set out in Part I.A.2.a. above, Santos-Pena testified that the sample substance presented by defendants at the meeting in Venezuela on October 27 was cocaine. Prior to trial, defendants had moved in limine to preclude any such expert testimony by either Santos-Pena or Santos-Hernandez. The government argued that it instead proposed to offer their testimony as lay opinions. The district court ruled that Santos-Pena would be allowed to identify the substance as cocaine as his lay opinion, given his “established” “familiarity with cocaine” and the fact that at that meeting “he saw, touched, and smelled the substance.” (Pretrial Hearing Transcript, November 2, 2016, at 5 (internal quotation marks omitted).) The court stated that the fact that Santos-Pena had not also ingested the substance did not suffice to preclude him from giving his lay opinion that it was cocaine. However, the court excluded any opinion testimony by Santos-Hernandez, in part because he had only viewed the substance and had made no tactile, olfactory, or other examination. (See id. at 5-6.)
On appeal, defendants maintain that Santos-Pena testified as an expert because his “testimony that he could determine the identity and purity of cocaine by
Preliminarily, we note that defendants’ assumption that Santos-Pena must have testified as an expert because he opined on “purity” (Campo brief on appeal at 45) exaggerates the record. The only reference to a specific degree of purity (“[n]inety-five to ninety-seven“) was in Santos-Pena‘s recorded statement to defendants at the October 27 meeting (GX 213-T at 3-4). At trial, Santos-Pena did not
Moreover, the court plainly and properly did not allow Santos-Pena to testify as an expert, nor did he purport to do so. Santos-Pena was not a chemist. He testified that his tests “didn‘t involve any special instruments” (Tr. 917); nor had he had any training in scientific analysis of chemical substances (see id. at 923-24). Indeed, Santos-Pena had no schooling past the fourth grade. (See id. at 186.) Rather, he used quick and practical tests for assessing whether a substance contained cocaine. Further, although Santos-Pena was a “drug user” (Campo brief on appeal at 42 (internal quotation marks omitted)), Santos-Pena did not purport to base his opinion on his experience as, or its effect on, a user. Rather, the tests he used--which, though not scientific, were plausible as a practical matter--made it possible for him to make such a determination without any ingestion of the substance.
The other foundations of Santos-Pena‘s familiarity with cocaine, and of his ability to determine its presence without testing by ingestion, were established by
Santos-Pena testified that in dealing with those shipments from Colombia, to be sure they actually contained cocaine, “what we did is we very quickly opened up one kilo just randomly. We would open it to confirm that it was cocaine. And that was the test, the smell, by sight, by color, and the quality.” (Id. at 920.) Thus, while there was no indication that Santos-Pena was an educated expert or had had training in any technical aspect of substance identification, the provenance of the tests he used--an established drug cartel‘s standard practice--provided a rational basis for Santos-Pena‘s ability to evaluate the substance submitted for his personal
3. Testimony Interpreting Defendants’ Statements
Defendants also contend that the district court abused its discretion in allowing Gonzalez and Santos-Pena to provide their interpretations of certain statements made by Campo. Although defendants at trial objected to several requests for such witness interpretations and were granted a standing objection, their appellate briefs target just two Gonzalez interpretations of statements by Campo during his postarrest interview and one Santos-Pena interpretation of a Campo statement in the October 23 meeting. Both Gonzalez and Santos-Pena were so testifying as participants in the conversations and as to what they had understood defendants to mean, i.e., as lay witnesses rather than as experts, and we reject defendants’ challenges, given the Rule 701 principles discussed above.
The other interpretation to which defendants object here concerned Campo‘s October 23 statement to Santos-Pena that “‘I had some cars and I was working with some people over there from where you guys are from‘” (Tr. 619 (quoting GX 203-T at 25)). As we have recognized, “individuals engaging in illicit activities rarely describe their transactions in an open or transparent manner and the government may call witnesses to provide insight into coded language through lay opinion testimony,” Yannotti, 541 F.3d at 126, and we see no error in allowing such insight in this instance.
Santos-Pena had interpreted “cars” to mean airplanes (Tr. 619 (internal quotation marks omitted)); with respect to the latter part of Campo‘s statement he interpreted “people” to mean Mexicans; and, over a defense objection, he interpreted “working” to mean drug trafficking (Tr. 620). This was hardly the only instance in which Campo used “work” to refer to drug trafficking. Most obviously, two days after the initial drug transaction negotiation with Sentado, Campo had texted Sentado
B. Sufficiency of the Evidence
Defendants challenge the sufficiency of the evidence at trial to support their convictions, contending principally (1) that we should “disregard” as incredible the testimony of Santos-Pena and just “test the sufficiency of whatever evidence might be left” (Campo brief on appeal at 26); (2) that there was inadequate proof that defendants had any knowledge that the destination of the drugs would be the United States; (3) that there was no evidence that they deliberately avoided gaining such knowledge; and (4) that the government failed to rebut their defense of entrapment. We reject all of these challenges.
It is also well established that “[i]t is the province of the jury and not of the court to determine whether a witness who may have been inaccurate,
A defendant‘s challenge to witnesses’ “credibility based on their plea agreements with the government and their long histories of criminal and dishonest behavior” is subject to these standards. United States v. Florez, 447 F.3d 145, 156 (2d Cir. 2006) (”Florez“), cert. denied, 549 U.S. 1040 (2006); see, e.g., United States v. Riggi, 541 F.3d 94, 108 (2d Cir. 2008) (“All issues of credibility, including the credibility of a cooperating witness, must be resolved in favor of the jury‘s verdict.“). “We will not attempt to second-guess a jury‘s credibility determination,” and “we will assume that the jury ‘resolve[d] all issues of credibility in favor of the prosecution.‘” Florez, 447 F.3d at 156 (quoting United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1986)).
Given these principles, we reject the contention that the testimony of Santos-Pena should be entirely disregarded. At trial Campo and Flores extensively explored Santos-Pena‘s credibility on cross-examination by, inter alia, emphasizing that for several years during the time he operated as a DEA confidential informant, he engaged in extensive unauthorized drug trafficking activities; that the government learned of those activities in 2016; and that in September 2016, just two months before defendants’ trial, Santos-Pena pleaded guilty to charges of importing drugs into the United States, distributing drugs in the United States, and lying to the government. (See Tr. 725-33, 756-57, 879-94; see also id. at 602, 684, 719.) Defendants also elicited new evidence that following that guilty plea Santos-Pena had continued his illegal activities by communicating with Santos-Hernandez and other drug traffickers from prison, and had lied under oath about having done so when he testified in the present case. (See id. at 951-80.)
However, these were factors for the jury to assess, and the jury was properly instructed that it was “quite free to reject all or any part of [Santos-Pena‘s] testimony” (Tr. 1482). As Santos-Pena‘s testimony with respect to his dealings with defendants was not incredible as a matter of law—indeed, most of those dealings had
2. Knowledge or Belief as to Likely United States Importation
Title 21 of the United States Code provides, inter alia, that it is unlawful for any person (i) “knowingly or intentionally” to “import[] a controlled substance” into the United States,
“The crux of a conspiracy is an agreement between two or more persons to join together to accomplish something illegal.” United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019). That agreement “may be tacit rather than explicit.” United States v. Zhou, 428 F.3d 361, 370 (2d Cir. 2005) (internal quotation marks omitted). To establish a conspiracy-to-import offense, the government is required to prove, inter
While it is seldom feasible to present direct evidence of a person‘s state of mind, it is often possible to infer knowledge or belief from outward manifestations such as a defendant‘s statements or conduct, or from the circumstances surrounding or attendant upon facts he or she is alleged to have known. See United States v. O‘Brien, 926 F.3d 57, 79 (2d Cir. 2019); United States v. Nersesian, 824 F.2d 1294, 1314 (2d Cir.), cert. denied, 484 U.S. 958 (1987). For example, evidence that a defendant was aware that “narcotics transported from Colombia to Mexico typically do not remain in Mexico because their value is considerably higher in the United States” provides some evidence that he knew the cocaine at issue was to be imported into the United States. Romero-Padilla, 583 F.3d at 130.
To meet its burden to prove knowledge in this case, the government
As a general matter, DEA Special Agent Mahoney testified that the approximate price of a kilogram of cocaine was $10,000-$12,000 in Honduras or Guatemala, but $25,000 in the United States. (See Tr. 547.) The mere fact that defendants planned to have the cocaine flown to Honduras would not alone have
First, Campo and Flores were participants in all four of the meetings held in October with Sentado or Santos-Pena; indeed, Campo and Flores were principals. Second, although it is not clear whether importation into the United States was
- At the October 23, 2015 meeting with defendants in Venezuela, Santos-Pena said explicitly that he was “the person who buys everything from” Sentado, ”taking everything to the United States” (GX 203-T at 6 (emphasis added));
- at the same meeting, after Campo had described agreeing with Sentado to “do something,” Santos-Hernandez (listed as CS-2) said:
(GX 201-T at 5 (emphases added));CS-2: You know that we send a lot of that to...
Campo: Of course.
CS-2: ... to New York ....
- at the October 26 meeting, Santos-Pena explained he would “keep putting money into it until it gets to Mexico” and “keep putting money into it to get it in to the Americans,” and Campo directly responded, ”Of course” (GX 206-T at 22 (emphases added));
- during that October 26 meeting, Santos-Pena stated that “starting December eighth or twelfth” when “the border gets very harsh surveillance,” he would stop shipping cocaine ”into the United States” (GX 206-T at 33 (emphasis added));
in Haiti on November 10, after Campo asked Santos-Pena if he did not like working in Europe, Santos-Pena said ”my business is right there inside the United States, which is your business as well because you are the owner of that work“; and when Santos-Pena said ”in New York I sell it for thirty-six, thirty-nine for each one,” Campo responded simply, “Sure” (GX 230-T at 8, 6 (emphases added)); - and at that final meeting, when Santos-Pena (listed as CS-1) said “once you have finished up with your mom‘s commitments, you tell me, ‘You know what? There go one thousand, of the one thousand, only pay me eight hundred,’ as an example, ‘pay me nine hundred, whatever you want,‘” here is how defendants responded:
(GX 230-T at 8 (emphases added).)Campo: Yes, well, we discussed that yesterday...
CS-1: “And one hundred or two hundred...”
Campo: Put them in for me over there...
CS-1: “... sell them for me in New York.”
Campo: Yes [U/I].
CS-1: So that you can see what one hundred kilos implies in New York.
Flores: Sure, [U/I].
Finally, at Santos-Pena‘s meeting with Campo and Flores on October 26, Santos-Pena stated, inter alia, that the per-kilogram price of cocaine in Honduras fluctuated between $12,000 and $14,000 (see GX 206-T at 18), and “if I sell in New
All of this circumstantial evidence easily permitted the jury to find that defendants had the requisite knowledge that the cocaine they planned to have flown to Honduras would ultimately be bound for the United States. Indeed, the recorded statements directly support Gonzalez‘s testimony that, when he asked Flores whether Flores knew the cocaine was to go to the United States, “Flores stated that the Mexican had told him the cocaine was going to Mexico and then to the United States, and several cities within the United States” (Tr. 161).
3. Conscious Avoidance
At the request of the government, and over defendants’ objections, the court gave an instruction that the jury could find that the disputed knowledge
In determining whether the defendants acted knowingly and intentionally regarding the object or purpose of the conspiracy, you may consider whether the defendants deliberately closed their eyes as to what otherwise would have been obvious. . . . [O]ne may not willfully and intentionally remain ignorant of a fact that is material and important to one‘s conduct in order to escape the consequences of the criminal law.
(Tr. 1504 (emphasis added); see also id. at 1505 (“if you find that the defendants were aware of a high probability that the conspiracy at issue . . . was to import cocaine into the United States, and the defendants consciously avoided confirming that fact, you may infer that they implicitly had knowledge“).)
On appeal, defendants do not challenge the content of the court‘s conscious-avoidance instruction. (See Flores reply brief at 7 n.1.) Rather, they contend (a) that giving any instruction as to that concept was improper because there was no factual predicate for it, arguing that there was no evidence that they ”deliberately avoided learning—or forming a belief” that the cocaine would be bound for the United States (Flores brief on appeal at 21 (emphasis in original)), and (b) that giving such an instruction “improperly permitted the jury to substitute conscious
The latter contention warrants little discussion, as it is squarely refuted by the conscious avoidance instruction as given. The court stated:
I want to be clear that this concept only applies when determining whether a defendant knew the objects or purposes of the conspiracy; it does not apply when determining whether a defendant knowingly participated in the conspiracy. It is logically impossible for a defendant to join a conspiracy unless he knows that a conspiracy exists. Thus, for example, if you find that the defendants were aware of a high probability that the conspiracy at issue in Count One was to import cocaine into the United States, and the defendants consciously avoided confirming that fact, you may infer that they implicitly had knowledge; if, however, the defendants actually believed that the conspiracy was not to import cocaine into the United States, or if the defendants were merely negligent or careless with regard to the knowledge they had, they lacked the knowledge necessary to become a coconspirator.
(Tr. 1504-05 (emphasis added).)
As to defendants’ contention that there was insufficient evidence to indicate that they deliberately avoided knowing that the cocaine was to be sold in the United States, the district court expressly recognized the principle that a conscious avoidance charge is not warranted in the absence of such evidence:
“[a] conscious avoidance instruction may only be given if (1) the defendant asserts the lack of some specific aspect of knowledge
required for conviction, and (2) the appropriate factual predicate for the charge exists . . . .” United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003) (internal quotation marks and alteration omitted). The second prong of the test “has two components—there must be evidence that the defendant (1) was aware of a high probability of the disputed fact and (2) deliberately avoided confirming that fact.” Id. “A factual predicate may be established where a defendant‘s involvement in the criminal offense may have been so overwhelmingly suspicious that the defendant‘s failure to question the suspicious circumstances establishes the defendant‘s purposeful contrivance to avoid guilty knowledge.” United States v. Lange, 834 F.3d 58, 78 (2d Cir. 2016) (internal quotation marks and alteration omitted).
Posttrial Order, 2017 WL 1133430, at *6.
As discussed above, although it is rare to have direct evidence of a person‘s state of mind, it may be possible to infer a person‘s knowledge, belief, or intent from, for example, his or her statements or conduct, or from the circumstances. Here, the district court (referring to Campo as “Campo Flores“) aptly pointed to all of these sources in rejecting defendants’ contention that there was no evidence that they had deliberately avoided knowing or believing that their cocaine was bound for the United States:
The government presented evidence that Defendants made a tactical decision not to confirm that the cocaine was bound for the United States. There are at least 13 recorded instances where the CSes made statements about taking drugs to the United States. Yet in all of those instances, Defendants never really respond to the
CSes’ statements. Campo Flores appears to have provided the explanation for why. In his confession, Campo Flores initially took the position “that he did not know the drugs were going to the United States and that those words never came out of his mouth.” Tr. 152. However, after DEA Special Agent Sandalio Gonzalez explained to Campo Flores that “there are recordings of his meetings and that [Campo Flores] didn‘t necessarily have to say it himself but knew that the Mexican individual had said that,” Campo Flores responded “yes, but I didn‘t emphasize it.” Tr. 153. This is strong evidence that, in order to maintain deniability, Defendants made a conscious attempt to avoid confirming that the target of the conspiracy was the United States.
Posttrial Order, 2017 WL 1133430, at *7 (emphases ours). The court added that
in fact, because Defendants did not respond to the CSes’ repeated references to the United States, the defense was able to use as a theme throughout the trial that Defendants did not know the target of the conspiracy was the United States.
Id. For example, in summation defense counsel emphasized that defendants themselves had made “[z]ero” “references to importation . . . into the United States” and that they “basically never respond[ed]” to the dozens of such references made by the CSes. (Tr. 1360-62.) As the district court observed, a “‘purposeful contrivance to avoid guilty knowledge‘” may be inferred from the fact that defendants declined to mention the ultimate destination for the cocaine “after the CSes’ myriad references to taking drugs to the United States,” Posttrial Order, 2017 WL 1133430, at *7 (quoting Lange, 834 F.3d at 78).
Campo: . . . one kilo of sweets costs fifty thousand dollars, one kilo.
CS-1 [Santos-Pena]: They are sending those to Europe more, right?
Flores: Yes... they are also in the United States.
Campo: Yes, but in the United States it costs two hundred thousand dollars per kilo [U/I].
(GX 213-T at 10 (emphases added).)
From defendants’ vague or inaudible responses—or nonresponses—when Santos-Pena mentioned the United States in connection with defendants’ cocaine,
In sum, given the record, the evidence at trial was ample to permit the jury to find that defendants, if they lacked actual knowledge, deliberately avoided learning—or forming a belief—that their cocaine was to be bound for the United States. We conclude that defendants’ challenges to the instruction on conscious avoidance are without merit.
4. The Defense of Entrapment
At trial, defendants argued that they were inexperienced and unknowledgeable, were not the large-scale narcotics traffickers that the government painted them to be, and had been entrapped by the government. “It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.” Jacobson v. United States, 503 U.S. 540, 548 (1992) (internal quotation marks omitted) (emphasis ours). Rather,
a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. . . . Predisposition, the principal element in the defense of entrapment, . . . focuses upon whether the defendant was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.
Mathews v. United States, 485 U.S. 58, 63 (1988) (internal quotation marks omitted) (emphases ours). When a defendant has presented credible evidence of inducement by a government agent, the government has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime. See, e.g., Jacobson, 503 U.S. at 548-49.
The government may prove predisposition in any of a number of ways, including by presenting evidence of
(1) an existing course of criminal conduct similar to the crime for which [the defendant] is charged, (2) an already formed design on the part of the accused to commit the crime for which he is charged, or (3) a willingness to commit the crime for which he is charged as evidenced by the accused‘s ready response to the inducement.
United States v. Salerno, 66 F.3d 544, 547 (2d Cir. 1995) (”Salerno“) (internal quotation marks omitted), cert. denied, 516 U.S. 1063 (1996); see, e.g., United States v. Valencia, 645 F.2d 1158, 1167 (2d Cir. 1980) (evidence that the defendants had a “readily available
source of supply for cocaine” and “were somewhat experienced with cocaine transactions” supported an inference that they had previously been engaged in a similar course of criminal conduct, and thereby established predisposition); United States v. Cromitie, 727 F.3d 194, 216 (2d Cir. 2013) (predisposition shown by “willing[ness] to join in a terrorism plot without any hesitation or reservation” (internal quotation marks omitted)).“The question of entrapment is generally one for the jury, rather than for the court.” Mathews, 485 U.S. at 63. When a defendant contends on appeal “that he was entrapped as a matter of law,” he is mounting “in substance an attack on the sufficiency of the government‘s evidence of predisposition.” Salerno, 66 F.3d at 547; see, e.g., United States v. Harvey, 991 F.2d 981, 992 (2d Cir. 1993). And when we consider such a contention on appeal—the jury having found beyond a reasonable doubt that the government established predisposition—we view the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor. See, e.g., Salerno, 66 F.3d at 547.
Here, defendants contend that the government failed as a matter of law to establish their predisposition to commit the charged crime of importing cocaine into the United States, arguing that no rational juror could have found either that
As to an existing course of similar conduct, there was ample evidence that defendants had long been involved in drug trafficking, including internationally, well before they had any contact with anyone connected with the United States Government; at their various October meetings in Venezuela, they told the CSes about some of their drug trafficking experiences. For example, at their first meeting with Santos-Pena and Santos-Hernandez on October 23, Campo said that defendants had been doing drug trafficking business with Mexicans. (See Tr. 619-20; GX 203-T at 25.) Campo also described a bad incident in which he had accepted a shipment from a recommended narcotics supplier “relying on the fact that it has a certain purity“; “they told me that it was one thing and something different arrived,” and “I lost money.” (GX 201-T at 4-5.) However, Campo left no doubt that defendants’ overall history in the business had been extensive and profitable. At defendants’ October 26 meeting with the CSes, Campo said “I‘m thirty years old, [U/I] thirty years old. I‘ve been doing this work since I was eighteen“; he said “we have made money.
Campo‘s boasts that defendants had a sizable ongoing drug trafficking business prior to October 2015 were supported by the texts of August and September 2015 found on the phones seized from defendants when they were arrested. They encompassed hundreds of messages from, to, or between Campo and Flores and other drug traffickers, revealing other discussions of “looking for work,” “sell[ing 1000] chairs for the party” at “200 per unit,” the availability of “pilot[s],” and hoping “to purchase” a “big” airplane “as soon as we are able.” For example:
- On August 7, Flores wrote to Campo that he had run into an individual called “Pepero” or “Pepe,” and that Pepe was “[l]ooking for work.” (GX 405-T at 5.)
- On August 18, Campo contacted Pepe, saying, “My cousin gave me your number.” (GX 408-T at 2.)
- On August 25, Pepe sent Campo an exchange of messages with a person named “Mayweather” and wrote that “he has two with a pilot and co-pilot,” and Campo responded “[h]ere we go this is going to work out for us.” (GX 408-T at 4-5.)
- On August 31, when Flores asked Pepe “[w]here do we send the g5” (apparently referring to a Gulfstream V jet (see Tr. 204)), Pepe responded: “It‘s going for el sombrero.” (GX 515-T at 3 (italics in original).)
- On September 7, Pepe informed Campo he was “talking with the people they want us to sell them the chairs for the party then they will give us the papers.” (GX 408-T at 16.) Pepe told Campo “we can charge them 200 per unit if it‘s 1000 we will be left with 200 thousand.” (Id.)
- On September 16, Pepe sent Flores an exchange of messages in which Mayweather—apparently referring to models of Cessna piston engine aircrafts—had asked Pepe if they could use either a “402” or “404” because “[t]hose are the ones which are available” (GX 515-T at 7); Flores responded that the planes “ha[d] to be bigger” (id. at 9).
- Pepe relayed that message to Mayweather, who responded on September 17 that he was “on the move already” looking for “a big one” “[w]ith turbines.” (GX 515-T at 10.) Pepe sent this exchange to Flores, who responded: “Okay let‘s wait.” (Id.)
- On September 20, when Pepe informed Flores that “[t]he other big lift is ready“; Flores responded “[a]wesome,” told Pepe “[w]e are waiting to purchase one as soon as we are able to,” and sent a picture of a Learjet plane for sale at $128,500. (GX 515-T at 11-12.)
- However, on September 25, Pepe sent Flores a series of messages with Mayweather in which Mayweather indicated that the “captain” had been unable to obtain the necessary permit. (GX 515-T at 16-17.) Campo promptly texted Pepe that he was frustrated at having been “postponed twice already,” which made him look bad (GX 408-T at 18-19), and said he had found “someone else to do it with” (id. at 18).
- In texts on September 28, 2015, between Flores and Pepe, Pepe stated that “the taco people will be arriving today.” (GX 515-T at 9 (emphasis added).)
- In the afternoon of October 1, Campo stated that he was “tired of waiting” and told Pepe he was “making arrangements with other people” (GX 408-T at 26)—presumably Flaco.
In a text conversation on the night of October 1, 2015, Campo and his associate “Gilson” discussed plans to charter a plane to fly between Venezuela and San Pedro Sula, Honduras, which would cost around $20,000, and the need to have copies of the passengers’ passports (GX 407-T at 19-21).
Thus, the thrust of defendants’ conversations prior to October 3, 2015, revealed their efforts to obtain money by, inter alia, flying cocaine from Venezuela to buyers in other countries: expressly to Honduras, as texted on October 1, and implicitly—given the references to the sombreros and taco people, as the government argued without objection—to Mexico. Campo‘s frustration over delays by other would-be drug trafficking partners was what led defendants to go to Honduras on October 3 to meet with Sentado as recommended by Flaco—a Honduras-based Colombian drug trafficker who had no connection with the United States government. The jury could easily view defendants’ prior attempts to fly cocaine to drug traffickers in other countries as similar to the conduct charged here.
Finally, as to proof of predisposition through a defendant‘s response of ready willingness to commit the crime charged, there was abundant evidence of enthusiasm on the part of Campo and Flores for this crime. In challenging the sufficiency of the government‘s evidence of predisposition to have their cocaine introduced into the United States, defendants emphasize that there was no recording
And if there was such discussion of the United States at that October 3 meeting, the evidence showed that defendants signed on with alacrity, as on October 4 they told their cohort Pepe that they had found another buyer; and on October 5 they were urging more speed by Sentado and his associates. As chronicled by the district court (referring to Campo as “Campo Flores,” and to Flores as “Flores de Freitas“), defendants’ immediate responses to whatever was discussed on October 3 included the following:
- . . . [O]n October 4, 2015, Flores de Freitas told Pepe that Defendants “already did it [somewhere] else[].” GX 515-T at 26.
- On October 4, 2015, Defendants discussed “security logistics” and purchasing several new BlackBerrys. GX 402-T at 2-3; GX 510-T at 16.
- On October 5, 2015, Flores de Freitas reached out to one of Sentado‘s associates, Rayo, to complain that “[t]he man has not given the name of the contact to primo.” See GX 504-T at 2.
- On October 5, 2015, Campo Flores explained to Sentado that “[w]hat I want is to start work because the electoral campaign is almost here and I always contribute . . . [w]ith money if you know what I mean that is why I want to start work.” GX 3508-38-T; Tr. 475.
- On October 12, 2015, Flores de Freitas asked Rayo “[w]hat happened to the man he hasn‘t been in touch with el primo for a while and we‘re ready;” then subsequently explained that “[e]verything is good brother just waiting to receive your visit over here.” GX 504-T at 3.
Posttrial Order, 2017 WL 1133430, at *4. In sum, the record showed that “[i]mmediately after their October 3, 2015 meeting with Sentado in Honduras, Defendants were eager to proceed full steam ahead with the scheme.” Id.
Finally, even if at the October 3 meeting with Sentado there was no mention of selling cocaine in the United States, it is indisputable that distribution in the United States was discussed at the next meetings of Campo and Flores with Sentado‘s supposed associate Santos-Pena. Defendants first met Santos-Pena on October 23 and met with him again on October 26 and 27. As discussed in Parts I.A.2.a. and II.B.1. above, the recordings of defendants’ first meeting with Santos-Pena show that in that October 23 meeting, when Campo complained about being unable to reach Sentado, Santos-Pena said “I am the person who is responsible for taking everything to the United States” (GX 203-T at 6), and nothing indicated that
In sum, upon mention that the drugs would be sold in the United States, there was no semblance of any reluctance or hesitation by these defendants, who had spent the previous two months attempting to get partners for their plans to fly cocaine to other countries. Defendants’ challenge to the sufficiency of the evidence of predisposition is meritless.
C. Sentencing
The presentence report (“PSR“) prepared for each defendant calculated a base offense level of 38 based on drug quantity, see
The district court concluded that either the Guidelines-recommended life imprisonment or the government-requested 360 months’ imprisonment would be “the equivalent of a life sentence” and therefore “too harsh.” (Sentencing Transcript (“S.Tr.“) at 42-43.) It stated,
I‘m going to impose a sentence of 216 months which will put this case at the offense level of 36, which I think is appropriate, considering all the circumstances, the nature and the circumstances of the offense and the history and characteristics of Mr. Flores De Freitas and Mr. Campo Flores.
(Id. at 43.) The court also ordered each defendant to pay a fine of $50,000, plus the mandatory special assessment of $100.
On appeal, defendants challenge two of the offense level increases found appropriate by the district court: (1) a two-step adjustment for defendants’ roles in the conspiracy as supervisors or leaders of criminal activity, see
1. The Supervisory Role Adjustments
The Guidelines recommend a two-step increase in offense level for a defendant convicted of nonextensive criminal activity in which he was an organizer, leader, manager, or supervisor of at least one other participant, but of fewer than four other participants. See
Defendants, principally citing Skys, contend that the district court erred in applying role increases to them because it did not sufficiently identify any other
Skys was a case in which the district court found the defendant to have organized an “extensive” fraudulent operation in which the court found he “had” one named individual about whose knowledge of the fraud there was little evidence, and “had the unwitting participation of other people at . . . financial institutions.” 637 F.3d at 156 (emphasis added). We concluded that these findings were insufficient to permit meaningful appellate review and required a remand for clarification or further proceedings.
In the present case, in contrast, the district court found, after considerable discussion, that Campo and Flores “were organizers and leaders” of the conspiracy and that “[t]he participants that they led and organized were Pepe, Gocho, Daza at least, and [Carlos] Gonzalez, as well, plus the one bodyguard Modino [sic] Moreno who was there with Mr. Flores De Freitas in [Honduras] on the 6th of November of 2015.” (Hearing Transcript, October 3, 2017, at 56-57; see Flores brief on appeal at 55 n.12 (“‘Modino Moreno’ is not an individual who appears anywhere in the record, though the District Court was likely referring to Jesfran Josnel Moreno, one of Flores‘s bodyguards” (emphasis ours)).)
In light of the record, we see no error in the district court‘s findings that
2. The Enhancement for Private Aircraft
[i]f the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, (B) a submersible vessel or semi-submersible vessel as described in
18 U.S.C. § 2285 was used, or (C) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance.
Defendants contend that, given part (A)‘s phrase “was used,” employing the past tense, and given that the present prosecution resulted from a sting operation, and the conspiracy did not result in any actual importation of cocaine into the United
Reviewing the district court‘s interpretation of the Guidelines de novo, see, e.g., United States v. Valente, 915 F.3d 916, 921 (2d Cir. 2019), we are not persuaded to follow the decisions of Joelson and Chastain for the reasons we explain below. We begin with observations as to the penalties prescribed by
a. Statutory Penalties Prescribed for Conspiracy Offenses
Most federal criminal statutes prohibit completed substantive offenses; conspiracies to violate such sections are generally prohibited by the umbrella provisions of
A few criminal statutes, such as the
The
[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
b. Guidelines § 2D1.1 and Prior § 2D1.4
When the Guidelines were first promulgated in 1987,
Base Offense Level: If a defendant is convicted of participating in an incomplete conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.
Although no specific offense characteristics were specified in § 2D1.4, we think the Guidelines implicitly intended that the SOCs to be used in calculating the offense level of a person convicted of a given substantive drug trafficking offense should also be applied to one convicted of conspiracy to commit that offense. As the Guidelines themselves note, among Congress‘s goals in enacting the
In sum, we infer that when the Guidelines included § 2D1.4, they implicitly required that the offense level of a person convicted of conspiring to commit a drug trafficking offense be calculated with reference to
c. Section 2D1.1 and “Specific Offense Characteristics”
The specific offense characteristic set out in
[i]f the defendant is convicted of violating
21 U.S.C. § 960(a) under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import the controlled substance, or (B) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance.
In 1992, Guidelines Amendment No. 446 amended then-§ 2D1.1(b)(2), to the extent pertinent here, by adding a reference to exportation, and by deleting the reference to a conviction under
[i]f the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, or (B) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance.
At the same time, the Guidelines were amended to delete § 2D1.4 which had expressly covered Attempts and Conspiracies, and to make § 2D1.1—and 17 other individual drug offense guidelines—expressly applicable to attempts and conspiracies. See
Reason for Amendment: This amendment clarifies and simplifies the
guideline provisions dealing with attempts and conspiracies in drug cases and conforms the structure of these provisions to that of other offense guidelines that specifically address attempts and conspiracies (i.e., offense guidelines referenced by §2X1.1(c)).
Amendment 447, at 324 (emphases added). This statement does not suggest that any substantive change in Guidelines treatment of drug offenses was intended.
Section 2D1.1 thus became one of the guidelines that, following Amendment 447, is listed in
As a fundamental matter of interpretation, the Guidelines instruct that when one guideline gives “an instruction to apply another offense guideline[],” that instruction “refers to the entire offense guideline (i.e., the base offense level, specific offense characteristics, cross references, and special instructions).”
Thus, Amendment 447 clarified and made explicit what we view as having been previously implicit. The title of
d. The Decisions in Joelson and Chastain
The decisions in Joelson and Chastain do not persuade us to reach a contrary conclusion. In Joelson, the defendant was convicted of having, inter alia, conspired in 1990 to import approximately 770 kilograms of cocaine, and having aided and abetted the importation of that cocaine, in violation of
[T]he cocaine was delivered to a landing strip in Guatemala in an Arrow Commander one thousand, which was not a “regularly scheduled commercial air carrier.” The cocaine was unloaded, and DEA agents took the cocaine, stored it, and ultimately flew it into the United States on a commercial Pan Am flight.
Joelson, 7 F.3d at 179-80. The district court‘s calculation of Joelson‘s sentence included a two-step increase in offense level pursuant to the private aircraft enhancement in
Joelson argued that that increase was error based on the past-tense meaning of “was used” in then-§ 2D1.1(b)(2)(A). The Ninth Circuit agreed and remanded for resentencing without the two-step increase:
Joelson argues, and we agree, that the plain language of section 2D1.1(b)(2) should be given effect. The cocaine was imported from the landing strip in Guatemala to the United States. Although a private plane flew the cocaine to Guatemala, a commercial Pan Am air carrier “was used to import” the cocaine into the United States. See U.S.S.G. § 2D1.1(b)(2). Stretching the definition of “used to import” to incorporate any use of a private airplane, regardless of whether it was used during the actual importation of the cocaine, flies in the face of the “plain language” of section 2D1.1(b)(2). . . . Moreover, nothing in the commentary to section 2D1.1(b)(2) compels a contrary conclusion. . . .
The government also argues that a two-level increase in the offense level under section 2D1.1(b)(2) was proper because the coconspirators intended to use a private airplane to import the cocaine. We disagree. Section 2D1.1(b)(2) provides for a two-level increase only if an aircraft other than a regularly scheduled commercial air carrier was used to import the cocaine. It does not provide for an increase when the parties merely intended to use a private airplane.
Joelson, 7 F.3d at 180 (emphases ours).
We question this reliance on the SOC‘s use of the past tense. The defendant in Joelson was sentenced in 1991, at a time when, as indicated in Part
In Chastain, the defendants had been involved in several months of mishaps, discussions, and negotiations in 1996 with a view to obtaining an airplane in order to bring a large quantity of marijuana from Jamaica to the United States. See 198 F.3d at 1344-47. They were arrested before any flight was made to Jamaica to pick up the drugs and were convicted of attempting and conspiring to import marijuana into the United States in violation of
Appellants . . . challenge the district court‘s application of a two-level upward adjustment for their plan to use a private plane to import narcotics, pursuant to U.S.S.G. § 2D1.1(b)(2). § 2D1.1(b)(2) states, inter alia, that “If the defendant unlawfully imported or exported a controlled substance under circumstances in which an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance, . . . increase by two levels.”
Appellants argue that the enhancement was inappropriate because no actual importation or “use” occurred on these facts. The district court below, in applying the enhancement, endorsed a broad interpretation of the plain language of the guidelines, relying on the terms “Attempt or Conspiracy” found in the title of § 2D1.1.
The Ninth Circuit, previously confronted with interpreting § 2D1.1(b)(2), held that the intent to use a private plane was not enough to warrant the two-level enhancement. See United States v. Joelson, 7 F.3d 174, 180 (9th Cir. 1993) (cert. denied, 510 U.S. 1019, 114 S.Ct. 620, 126 L.Ed.2d 584). In Appellants’ case, there was clearly an attempt and a conspiracy, on which the district court relied in applying this enhancement. However, the plain language of the guideline that uses the past tense, viz “used to import,” cannot be ignored. When the language of the guideline is clear, it is not necessary to look elsewhere for interpretation. Here, the language of the guideline clearly contemplates a completed event, an actual importation. That did not occur in this case. The Court will not look
to the title of a guideline to explain what is quite clear in its text. Thus, the district court‘s reliance on the terms in the title as explanatory of the guideline is misplaced. The two-level increase as applied to these three Appellants, therefore, was an error of law.
Chastain, 198 F.3d at 1353 (emphases ours).
The events at issue in Chastain occurred in 1996; by that time,
Second, we think the Chastain Court, in finding that the district court erred in relying on the fact that the title of
We note also that it is hardly clear that the Eleventh Circuit itself continues to follow the holding or reasoning of Chastain, as that court has held
“The adjustment in § 2D1.1(b)(2)(B) plainly is to be applied to convictions for conspiracy and attempt, so long as the necessary factual predicate for the enhancement exists. . . . [The defendant‘s] argument is simply that the substantive crime was not committed. It simply does not matter whether he actually carried the controlled substance; his conspiring and his attempt to do so warrant the application of the enhancement.”
Rendon, 354 F.3d at 1330 (quoting Rodriguez, 215 F.3d at 124 (emphases ours)).
In sum,
CONCLUSION
We have considered all of defendants’ arguments on these appeals and have found in them no basis for reversal. The judgments are affirmed.